Attachment System Improvements in 1.1 - Privacy concerns

Not to be a killjoy, but this function walks a very fine line if you wish to give it the benefit of the doubt, it flat out violates EU data privacy laws if you don't. You (as a service provider) are *not* at liberty to "keep up with what the users are doing in private conversations", not even attachment-wise. You are allowed to inspect things like this, under very narrowly defined circumstances, varying by country.
A function that can be easily accessible, that would display attachments of personal conversations whenever you inspect the regular attachment list, or that would be accessible to moderators as well would be problematical, to put it very mildly.

Unless, of course, you put it in your ToS that private conversations aren't private and are routinely beeing snooped if attachments are present... suboptimal, if you ask me.

Not everyone lives in the EU and not all forums are public. Fair enough point you made, but let's try and stop having software limit those that don't have such restrictions and have administrators be responsible for their own actions/configurations.

Well, let me put it like this: you've got to be creative to find any western country where you're allowed to do what this browser allows, even the US, which is worse than some banana republics with regard to data privacy and whose check-ups on companies who declare Safe Harbor compliance is dismal, has provisions that very likely forbid this. ;-)

I've got nothing against the function though, if the ToS clearly state that it's there it's still not entirely fine for many countries, but you'll likely get away with it unless we're talking pretty major players. I just wanted to mention that this *is* a very hot topic.

Well, let me put it like this: you've got to be creative to find any western country where you're allowed to do what this browser allows, even the US, which is worse than some banana republics with regard to data privacy and whose check-ups on companies who declare Safe Harbor compliance is dismal, has provisions that very likely forbid this. ;-)

I've got nothing against the function though, if the ToS clearly state that it's there it's still not entirely fine for many countries, but you'll likely get away with it unless we're talking pretty major players. I just wanted to mention that this *is* a very hot topic.

Or, if you live in such a country (I know Germany, for example, is pretty stringent) you could just not give your users permissions to do PM attachments while the rest of the world goes along happy with the new functionality.

Stored Communications Act:
The SCA creates Fourth Amendment-like privacy protection for email and other digital communications stored on the internet. It limits the ability of the government to compel an ISP to turn over content information and noncontent information (such as logs and “envelope” information from email). In addition, it limits the ability of commercial ISPs to reveal content information to nongovernment entities.

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Additional thoughts:

Aside from copyright (and abuses and highly dubious interpretations of it), some consideration in cases of this kind also needs to be given to privacy laws and rights in various jurisdictions. I don't know much about rights to privacy in the USA where the site is based, but within countries which are signatories of the European Convention on Human Rights, this case would seem to me (IANAL) to be covered by article 8 of that convention:

Article 8 – Right to respect for private and family life

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

It seems fairly clear that E2's private messages constitute a form of "correspondence", (although I am sure that dissertations could be written on the subject if one felt like it). It has certainly been applied to email, including email to closed mailing lists (the existence of an archive seems to be a key distinction between private correspondence and published matter in such cases, which may be of significance as regards the catbox, but that's a whole nother topic for later.)

Although the European convention is not the strongest piece of international law out there, it has been transposed in various ways into the national legislation of many signatory countries - here in the UK by the Human Rights Act (2000). Many countries also have separate legislation designed to protect private data stored on computers by organisations, businesses and public authorities, which might be construed to cover the private messages held on E2's servers. Although the likelihood of E2 ever being caught up in legal proceedings under any of these laws is obviously pretty small, it seems to me that their existence gives a fairly clear indication of what ought to be considered a sane approach to such matters: that, in the absence of pressing reasons in the general interest, the disclosure of the private correspondence of a third party is unacceptable, quite regardless of the existence any copyright on the text.Source

AFAIK PMs are not recognized anywhere as private data, like email and physical letters are. Could you please reference your claims that browsing PM attachments might not be legal?

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Whatever gave you that idea?I know this argument has been advanced previously, but never understood why people figured that it was the case.

Depending on the jurisdiction, a forum membership is either an actual contractual relationship, semicontractual or quasicontractual, and you're considered a service provider, which comes with a lot of baggage.

Privacy laws are formulated with a vague language in order to apply to a very wide class of scenario, irrespective of the technologies used, there generally isn't a data privacy law specifically forbidding tapping emails or faxes or private messages because there are wider provisions on wiretapping, interception of communication and other means of invasion of privacy that adequately cover the issue and courts generally let the it boil down to the very simple consideration whether the user can reasonably expect that a certain information is "private" or directed to a specific audience of his choosing. If that's the case, stuff is likely private, no matter how trivial it is for you to look at it with phpMyAdmin.

In the US, the most likely starting point would be the Stored Communications Act, only recently invoked in a number of cases, in the EU you may look into the Data Protection Directive (95/46/EC), in the UK, the Data Protection Act of '98 is your friend.

As a caveat, I have to say that US federal law on the matter is considerably weaker than EU or British law, even though some states have quite strong auxilliary provisions, but in general, while I am not aware of a court case actually testing this, I wouldn't bet my hat on coming out on top if I had to argue that user "private messages" are generally understood by the users to be "not private". Calling them conversations likely won't change that, because those, too, are generally assumed and understood to be conversations "among the participants". Yeah, it's a nice case to make money off, arguing that thing up to the high courts, but generally, you prefer not to be part of that argument as a party.

Then again, Vitamin Water got away with the "Our customers are idiots if they assume our stuff is healthy"-defense in the US...

/edit Thank you kyrgyz for already posting the SCA and auxilliary materials.

jwiechers, have you seen an official reference to conversations being private anywhere on the XenForo software (excluding threads/posts)?

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I think this kind of argument won't fly well in the courtroom.

From Legalese:

implied
adj., adv. referring to circumstances, conduct or statements of one or both parties which substitute for explicit language to prove authority to act, warranty, promise, trust, agreement, consent or easement, among other things. Thus circumstances "imply" something rather than spell it out.

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Take for example contracts:

implied contract
n. an agreement which is found to exist based on the circumstances when to deny a contract would be unfair and/or result in unjust enrichment to one of the parties. An implied contract is distinguished from an "express contract."

express contract
n. a contract in which all elements are specifically stated (offer, acceptance, consideration), and the terms are stated, as compared to an "implied" contract in which the existence of the contract is assumed by the circumstances.

You (as a service provider) are *not* at liberty to "keep up with what the users are doing in private conversations", not even attachment-wise. You are allowed to inspect things like this, under very narrowly defined circumstances, varying by country.

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Your undertstanding of the law is just plain wrong.

What xenforo has added in is ENTIRELY legal and not even open to debate unless your forum specifically states otherwise that personal conversations are confidential.

I hope nothing I wrote came across as confrontational, it wasn't meant like that, it's just that these things are rather annoyingly complex and I've had my fair share of intra- and inter-corporate as well as private battling over the topic and so I'm sensitized with regard to the issue.

Obviously, I cannot tell what courts would decide, especially since far too many variables come into this, but whether something is explicitly called "private" likely doesn't play such a big role. As kyrgyz pointed out as well, the primary question to resolve in those cases is what the "reasonable", "typical" user will expect from a certain function and how the users rights for privacy relate to the justifiable rights of the service provider to curtail those in order to provide his services. A "Conversation" feature that allows someone to have a "conversation" with a single person or a specified group of people would (I'd think) likely fall under this as well.

As said, I'm just sensitized, and while I am not aware of court cases involving forum software and private messages/conversations specifically, I'd find it a tough sell to argue they are different, or, more precisely, that the user can reasonably expect them to be open to the administrators of a website if he is able to specifically address them to certain people. That is, unless there is a clear and justifiable reason for doing so that *exceeds* the users generally pretty highly valued right for privacy: e.g. if user X accuses user Y of threatening behavior (and certain conditions are met), a service provider *is* allowed and may even be compelled to provide otherwise private information to relevant authorities. What constitutes such private information, well, that depends on who you ask ... but there have been court cases over forwarded emails and other internet messages which have swung either way depending on jurisdiction and specific content.

Disclaimer: I'm not a lawyer, but I've served as liaison between management and lawyers in a couple of data privacy matters more than once in differing forms of organizations and/or companies, specifically with regard to data privacy harmonization and internet privacy concerns. I didn't mean to be confrontational in anything, but wanted to voice this because issues surrounding these things (particularly the privacy of any form of electronic messages) flare up *very* regularly. I realize my initial post was written a bit too bluntly. I'm sorry for that.

/edit A clarification added to the end ("That is...")
/edit2 Another bit.

What on earth are you on about? Admins and moderators can no more read other users' conversations than they can with any other private message system built into forum software. Can you explain what you are trying to say?